High Court of Punjab and HaryanaFAO/198/2007allowed

Ved Pal v. Harjinder Singh And ORS.

2024-11-21Mrs. Justice Sudeepti Sharma15 pages

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1. Whether the death of Meenu daughter of Shri Harnam Singh and wife of Ved Pal was caused in a vehicular accident on 25.5.1999 on the over bridge on Kaithal road in the area of Police Station City, Karnal on account of use of a bus No. HR05A7705 being driven by respondent No.1 and owned by respondents No.2 and 3?OPP.

2. If issue No.1 is proved which of the petitioners is entitled to compensation? OPP

3. Whether the petitioner is entitled to any compensation. If so to what amount and from whom? OPP.

4. Whether the claim petition is time barred? OPR.

5. Whether the claimant has no locus standi to file and maintain the claim petition?OPR.

6. Whether the insured is not liable to make payment of compensation in view of preliminary objections and additional pleas in its written statement OPR4.

7.Relief.

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"20 Claimant Ved Pal in his affidavit Ex.PB alleged that the deceased was a self employed lady and she was carrying on the job of tailoring and embroidery and was earning Rs.3300/ per month. However, the case of Smt. Vidhya Wati, mother of the deceased in claim petition is that the deceased was not earning anything and she was a household lady. When Smt. Vidhya Wati came in the witness box as PWI she categorically deposed that Meanu did not do any work and she was a household lady. She also stated that she did not know stitching or tailoring. Respondent No.4 also produced a copy of statement Ex.R3 made by Ved Pal to investigator wherein he stated that prior to her death Meenu was not doing any work and household expenses were being met from his income. Ved Pal failed to produce any documentary evidence of the income of deceased.

Though he stated that the deceased had done a diploma in tailoring and embroidery yet when he was further crossexamined he further stated that he did not know as to from where she had done diploma. He also stated that he had not seen any diploma or certificate in favour of Smt. Meenu. In this view of the matter, the deceased is proved to be simply a household lady and not earning anything.

21. As per copy of the PMR Ex.P2 the age of the deceased was about 2223 years. When Ved Pal came in the witness box as PW2, a suggestion was put to him that he had contracted a second marriage with Rekha daughter of Gopal Dass and a female child was also born out of that wedlock. Though in his affidavit Ex. PB claimant alleged himself to be resident of House No.744 Prem Nagar Aghi Market, Karnal but when he came in the witness box for further cross examination on 30.1.2006 he stated that he was residing in Ram Nagar, Karnal and he used to reside in Prem Nagar, Karnal 89 years ago. A suggestion was put to him by the

learned counsel for respondent No.4 that he was residing in house No.749 New Prem Nagar, Karnal. Significantly respondent No.4 produced a birth certificate Ex.R6 which shows that a daughter was born to Ved Pal and Pooja resident of 749 New Prem Nagar Karnal 27.8.2003. PWI Smt. Vidhya Wati also stated that Ved Pal had remarried with Rekha daughter of Gopal Dass. Significantly Ved Pal did not lead any evidence in rebuttal showing that he did not marry with Pooja or Rekha and the birth certificate Ex. R6 was false and not pertaining to her daughter. So, it is proved that Ved Pal remarried with Pooja somewhere in the year 2002 because a daughter was born to him on 27.8.2003. The death of Smt. Meenu deceased took place on 25.5.1999. Deceased was a household lady and not earning anything.

Claimant can be granted compensation only on the basis of services rendered by deceased as a household lady. However. in the instant case it would not be appropriate to grant compensation to Ved Pal on the basis of structured formula because he has remarried. Under no fault liability the heirs of a victim can be granted compensation to the tune of Rs.50,000/ under Section 140 of the Motor Vehicles Act. I am of the view that the ends of justice would be met if an amount of Rs.50,000/ only is allowed to Ved Pal claimant of the first claim petition as compensation. No amount towards cremation and last rites of the deceased can be granted to the claimant Ved Pal because his statement as PW2 shows that cremation and last rites of Smt. Meenu were performed by mother and other relatives of Smt. Meenu.

22. For the reasons recorded above, the petitioner Ved Pal is entitled to an amount of Rs.50,000/ as compensation. Since respondent No.1 is the driver, respondents 2 and 3 are owners and respondent No 4 is the insurer of the offending bus, therefore, their liability shall be joint and several. This issue is decided in favour of the petitioner Ved Pal to the extent indicated above."

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"22. It is to be noted that the 1 st appellant would not have thought of a remarriage, but for the untimely death of her husband. It was not a remarriage on account of divorce. The Court has to consider the psychological hurdles that the widow will face on account of remarriage. The society is changing. The age old concept of a remarried widow cutting off all relations with the family of her exhusband, is becoming a story of the past. Fact remains that the 1st respondent was dependent on the deceased and would have remained so, but for the demise of her husband consequent to the accident. The death has indeed resulted in loss of dependency. After the death of husband, a widow may go for employment and become selfdependent or may opt for remarriage.

Either way, the loss of dependency consequent to the death of the husband does not cease merely because she has remarried or became selfreliant. The word dependency and legal representative, therefore, should receive a pragmatic interpretation. While computing compensation for dependency of a widow on the death of her husband under Section 166 of the Motor Vehicles Act, 1988, her remarriage shall not be a decisive factor."

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"18. It is a well settled position of law that in cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects. It has been reiterated by this Court in multiple instances that "just compensation" must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place." ( , ?+

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"12. In the judgment in the case of Puttamma & Ors.1, this Court has observed that the Central Government was bestowed with the duties to amend ScheduleII in view of Section 163A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to ScheduleII keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.1,00,000/ (Rupees one lakh only) towards compensation for the nonearning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/ (Rupees one lakh fifty

thousand only) for the non earning persons of more than 5 (five) years old.

13.

In the case of R.K. Malik & Anr.2 also, this Court has observed that the notional income fixed under Section 163A of the Motor Vehicles Act, 1988 as Rs.15,000/ per annum should be enhanced and increased as the same continued to exist without any amendment since 14.11.1994. In the case of Kishan Gopal & Anr.3 where the deceased was a ten years old child, this Court has fixed his notional income at Rs.30,000/ per annum. 14.

In this case, it is to be noted that the accident was on 06.09.2004. In spite of repeated directions, ScheduleII is not yet amended. Therefore, fixing notional income at Rs.15,000/ per annum for non earning members is not just and reasonable. 15.

In view of the judgments in the cases in Puttamma & Ors.1, R.K. Malik & Anr.2 and Kishan Gopal & Anr.3, we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in the case of Rajendra Singh & Ors.4 relied on by the learned counsel for respondent No.2 Insurance Company would not render any assistance to the case of the insurance company.

16. In view of the above, we deem it appropriate to take notional income of the deceased at Rs.25,000/ (Rupees twenty five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier '15', as prescribed in ScheduleII for the claims under Section 163A of the Motor Vehicles Act 1988, it comes to Rs.3,75,000/ (Rs.25,000/ x Multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs.40,000/ each towards filial consortium and Rs.15,000/ towards funeral expenses. Thus, the appellants are entitled to the following amounts towards compensation: (a) Loss of Dependency : Rs. 3,75,00000 (b) Filial Consortium : Rs. 80,00000 (Rs.40,000/ x 2) (c) Funeral Expenses : Rs. 15,00000 * 9 >'E ". = 5 # Sarla Verma Vs. Delhi Transport Corporation and Another @ :

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F30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units

indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having a considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird (1/3rd) where the number of dependent family members is 2 to 3, onefourth (1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only d the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird. * * * * * *

42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas3, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M17 for 26 to 30 years, M16 for 31 to 35 years, M15 for 36 to 40 years, M14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years and M 5 for 66 to 70 years.

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F52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh2. It has granted Rs.25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed.

The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be factcentric or quantumcentric.

We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.

* * * * * 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was selfemployed (or) on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma4 which we have reproduced hereinbefore.

59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma1 read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier.

59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

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"21. A Constitution Bench of this Court in Pranay Sethi2 dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With

respect to a spouse, it would include sexual relations with the deceased spouse.

21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation".

21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training".

21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.

24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi2. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.

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